State: City must rehire officer fired for using excessive force

In this Day file photo, New London police officer Thomas Northup, right, fires his gun into the cab of an overturned ice truck at Curtis Cunningham, 27, of New Haven, after he allegedly stole the truck and rolled it over at the intersection of Bank Street and Jefferson Avenue Wednesday, August 24, 2011.

Izaskun E. Larrañeta

The state Board of Mediation and Arbitration has ordered the New London Police Department to rehire an officer who was fired last year for shooting an unarmed suspect on Aug. 24, 2011, after the man stole an ice truck.

The New London Police Department posted on its Facebook page that it had received notification Wednesday that it must rehire Officer Thomas Northup, who shot Curtis Cunningham, leaving him paralyzed.

Northup, who had been with the department for four years, was fired March 22, 2012, after an internal investigation determined he had violated department policy regaurding the use of excessive and unreasonable force. It was determined that Northup made a premature and unauthorized decision to use deadly force.

But in its decision, the board said the city had failed to provide clear and convincing evidence that it could fire Northup.

The board said the city did not present credible evidence to establish that Northup's use of force was "not objectively reasonable or that it was excessive." The board also said the city misapplied long-lasting legal precedents and its own training protocol when it concluded that Northup's statement and belief that his life was in jeopardy could not be sustained.

"The fact remains that the city was unable to prove that Officer Northup knew that the suspect did not have a gun," the decision said. "Likewise the city was unable to prove that it had basis to dispute the grievant's objective belief that Cunningham presented an imminent harm... In the final analysis all the city could prove was that Officer Northup's belief was perhaps mistaken. However the latter finding does not make the grievant's use of force unreasonable, excessive or unlawful."

The board said Northup should be compensated for lost pay. The decision said it also may consider that Northup was injured and unable to work from March 12, 2012, through April 11, 2013.

Both the city and the police department said they would appeal the board's decision.

"When a law enforcement officer is found to have violated our department's policies on the use of deadly force, I believe the decision to fire that officer is fully justified," Mayor Daryl Justin Finizio said. "I strongly disagree with the decision reached by the labor board, and have instructed our law department to exhaust all legal remedies to appeal this decision and defend the city's position."

Deputy Chief Peter Reichard said the police department would not comment on the decision.

Hearings before the board were held Dec. 4, 2012, Feb. 7, Feb. 13 and April 11. Post-hearing briefs were filed June 7 and June 21.

Officer Todd Lynch, the police union president, said he was pleased that the board had ruled in the union's favor. He said Northup was terminated without just cause.

"I would hope in the future there will be better communication between the police administration and mayor's office with the union so that we can work together rather than issue harsh, unjust punishments," he said

Lynch said that because the city had decided to unfairly fire Northup, the taxpayers will now have to pay the city's attorney fees and Northup's back pay.

Last year, the New London State's Attorney's Office decided not to prosecute Northup because the state could not prove beyond a reasonable doubt that a crime had occurred.

According to the state's attorney's report, Northup discharged his weapon five times, hitting Cunningham four times — once in each arm and twice in the lower back. Cunningham was shot while standing in the overturned cab of the ice truck after allegedly stealing the truck and crashing it at the intersection of Jefferson Avenue and Bank Street.

Northup told the state investigator that he believed Cunningham had a weapon when he saw Cunningham turn toward him, "with his shirt protruding in an outline that Officer Northup believed could have been a gun." Northup yelled for Cunningham to "drop the weapon," but Cunningham continued turning toward the officer with both hands concealed under his shirt, the report states.

Cunningham tested positive for the drug PCP after being taken to the hospital, and he admitted to medical personnel that he had "a long history of using PCP and other illegal street drugs,'' according to the report.

Cunningham, who was 27 at the time of the shooting, has filed a federal lawsuit against the city and Northup. He has an extensive criminal record and pleaded guilty in January to his involvement in stealing the ice truck. He was sentenced to one year in prison, suspended after three months served and two years' probation.

Attorney Joel Faxon, a New Haven attorney who filed the lawsuit on Cunningham's behalf, said he could not comprehend how the board would allow Northup back on the force.

He said the wasn't condoning Cunningham's conduct, but that his client was unarmed and did not pose a threat.

"It's incomprehensible that he could be allowed to carry a gun legally," Faxon said of Northup. "Curtis was trapped in an overturned vehicle."